Lives in the Balance

Asylum Adjudication by the Department of Homeland Security

Andrew I. Schoenholtz

Publication Year: 2014

Although Americans generally think that the U.S. Department of Homeland Security is focused only on preventing terrorism, one office within that agency has a humanitarian mission. Its Asylum Office adjudicates applications from people fleeing persecution in their homelands. Lives in the Balance is a careful empirical analysis of how Homeland Security decided these asylum cases over a recent fourteen-year period.

Day in and day out, asylum officers make decisions with life-or-death consequences: determining which applicants are telling the truth and are at risk of persecution in their home countries, and which are ineligible for refugee status in America. In Lives in the Balance, the authors analyze a database of 383,000 cases provided to them by the government in order to better understand the effect on grant rates of a host of factors unrelated to the merits of asylum claims, including the one-year filing deadline, whether applicants entered the United States with a visa, whether applicants had dependents, whether they were represented, how many asylum cases their adjudicator had previously decided, and whether or not their adjudicator was a lawyer. The authors also examine the degree to which decisions were consistent among the eight regional asylum offices and within each of those offices. The authors’ recommendations­, including repeal of the one-year deadline­, would improve the adjudication process by reducing the impact of non-merits factors on asylum decisions. If adopted by the government, these proposals would improve the accuracy of outcomes for those whose lives hang in the balance.

Andrew I. Schoenholtz is Visiting Professor and Director of the Center for Applied Legal Studies at Georgetown University Law Center. He is Deputy Director of the Institute for the Study of International Migration at Georgetown University School of Foreign Service.

Philip G. Schrag is Delaney Family Professor of Public Interest Law and Director of the Center for Applied Legal Studies at Georgetown University Law Center.

Jaya Ramji-Nogales is Associate Professor of Law at Temple University’s Beasley School of Law.

Contents

List of Figures and Tables

Acknowledgments

Introduction

The Department of Homeland Security (DHS), established by Congress in
the wake of the September 11, 2001, terrorist attacks, is the third-largest federal
agency, with more than 180,000 employees.1 Most of its many functions
are well known to the public and associated with national security or law
and order. The department seeks to protect the nation against future terrorist...

1. Seeking Refuge

The United States was settled in part by waves of refugees, including the Pilgrims
and Puritans, seeking freedom from religious and political persecution.
Nevertheless, laws, regulations, and government programs to protect
refugees systematically and apolitically are of surprisingly recent vintage,
dating only from 1980...

2. The Applicants and the Adjudicators

This study analyzes a database drawn from the Department of Homeland
Security’s RAPS system, providing information about 552,760 asylum applications
filed between the beginning of FY 1996 and June 8, 2009.1 We studied
only the cases in which the applicants were really seeking asylum (as opposed
to another form of relief) and were actually interviewed by asylum...

3. The One-Year Filing Deadline

The first step, for an asylum officer who is analyzing a new asylum application,
is the determination of whether the claim was filed on time. This new
twist to the asylum standard took effect on April 16, 1998, as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Although the Refugee Act provides that any person from another nation...

4. Timeliness

The Department of Homeland Security’s data reveal interesting and at times
surprising patterns in asylum officer determinations of whether asylum
seekers filed within the permitted one-year period.1 This chapter describes
basic but crucial information about the deadline—what percentage of asylum
claims were determined to have been filed late and how late these claims...

5. The Rejections

In chapter 4, we reviewed the numbers and demographic characteristics of
applicants who did not establish to the satisfaction of asylum officers that
they filed their asylum applications within one year of entering the United
States. We saw that 92,622 individuals, 30.5 percent of all affirmative asylum
applicants, fell into this “untimely” category during the period of our...

6. Four Eras of Asylum Adjudication: Grant Rates over Time

During the fourteen-year period we studied, DHS granted asylum to 45 percent
of the 329,336 asylum seekers who applied on time or qualified for an exception
to the one-year deadline.1 Two factors should most strongly affect whether a
particular applicant wins or loses. The first is whether the applicant’s home
country is a human rights abuser (very few British people win asylum, but...

7. Perceptions about the Asylum Seekers

In chapter 6, we explored asylum adjudication over time, investigating the
relationship between grant rates and changes in laws, policies, and politics.
In this chapter, we shift our focus to examine variables that may have shaped
asylum officers’ perceptions of the asylum seekers. We start by discussing
the ways in which two sociological characteristics of the applicants—their...

8. Variations across the Regional Asylum Offices

Up to this point, we have examined changes in the grant rate over time and
the impact of officer perceptions of the asylum applicants on grant rates. In
this chapter, we shift our focus to the asylum offices as the locus of decision
making, looking at variations across these offices. As the map at the front
of this book shows, all of these offices have very large catchment areas; all...

9. Disparities within Asylum Offices

In Refugee Roulette, we reported that asylum officers within some of the
regional offices, to whom cases were randomly assigned, granted asylum at
very different rates, even to nationals of the same country or group of countries.
We now return to that issue, using the database from which the studies
in the three previous chapters were drawn. This chapter reports on disparities...

10. The Asylum Officers

In chapter 9, we saw that there was great variability among the grant rates of
asylum officers deciding similar cases within the same regional office. What
might account for these striking disparities? One asylum officer with whom
we spoke closed our interview by saying “there are so many factors that play
into the data—the age of the asylum officer, whether they have an old or a new...

11. Conclusions

By enacting the asylum provisions of the Refugee Act of 1980, Congress gave
hope to tens of thousands of people who must flee their countries every year
to escape persecution and find safety in the United States. The asylum provisions
of the Refugee Act are administered, in the first instance, by a corps of
civil servants who remain dedicated to fair adjudication despite overwhelmingly...

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